Can a city release a former firefighter's suspension letter, termination notice, and supporting investigation records under FOIA, and does the AG decide whether medical information should be redacted?

Plain-English summary

Cabot's City Attorney's office got a FOIA request for records of a former firefighter, including a suspension letter, a termination notice, and supporting documents from the misconduct investigation that led to the discipline. The custodian decided the records were releasable. The subject objected. The custodian also asked the AG whether some references to medical information in the records should be redacted.

Attorney General Leslie Rutledge concluded the custodian's release decision was consistent with FOIA, applying the same Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 framework used in the closely-related Cabot opinion 2021-0089. The suspension letter and termination notice spell out the reasons for discipline, which makes them employee-evaluation records under § 25-19-105(c)(1). The supporting investigative documents are also evaluation records because they were generated during a misconduct investigation. The four-part release test is satisfied: the employee was suspended and then terminated, the proceeding was final, the records formed the basis for the discipline, and the public-safety stakes for a firefighter create a compelling public interest.

On the medical-information redaction question, the AG declined to opine. Her statutory authority under § 25-19-105(c)(3)(B)(i) is limited to reviewing actual custodian decisions. Because Cabot had not yet decided whether to redact the medical references, there was nothing to review. The AG flagged in passing that the references in the body of the evaluation records did not look like clear candidates for redaction, but stopped short of a ruling.

What this means for you

If you are a public employee in a safety-sensitive role

Based on this opinion (paired with 2021-0089, also Cabot, October 2021), expect that your suspension letter, termination notice, and the supporting investigative records will be releasable under Arkansas FOIA once the discipline is final. The four-part test under § 25-19-105(c)(1) keeps a thumb on disclosure, and your role as a firefighter or police officer supplies the compelling public interest even when there is no public controversy.

If you want to keep specific information out of the released file, the strongest play is to point to a specific statutory exemption (medical records, undercover identifiers, personal financial info) and ask the custodian to make a documented redaction decision before release. The AG can review the custodian's decision but cannot manufacture one.

If you are a city attorney or records custodian

Two operational lessons:

1. Make every redaction call explicitly before asking for an AG opinion. This opinion shows that if the custodian asks the AG about a redaction question that the custodian has not yet decided, the AG cannot answer. The statutory review is of the custodian's decision, not of hypothetical future decisions. Decide first, then ask.

2. Investigative supporting documents follow the same path as the formal letter. When investigation files lead directly to a suspension or termination, those investigatory documents are evaluation records too, not personnel records. The four-part test in § 25-19-105(c)(1) governs them, and once the elements are met they come out with the formal letter.

If you are a journalist or FOIA requester

Suspension and termination records of police, firefighters, and other public-safety personnel are routinely releasable in Arkansas after the discipline is final. The supporting investigative file usually goes with them. Medical references inside those records are a separate question; ask the custodian what their redaction decision is for those, and if it's not yet been made, request that they make one before responding.

Common questions

Q: Why are the supporting investigative documents treated like the termination letter?
A: Because they were generated as part of an investigation into the employee's alleged misconduct that led to the discipline. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, sweeps in records "generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct." That keeps them in the evaluation-records category along with the formal disciplinary letter.

Q: Why couldn't the AG decide the medical-redaction question?
A: Because the AG's statutory authority under § 25-19-105(c)(3)(B)(i) is to review the custodian's actual decision. Cabot had not made a decision on whether to redact references to medical information from the body of the evaluation records, so there was nothing for the AG to review. Once Cabot makes that call, a custodian or subject could renew the request and the AG could weigh in.

Q: Are firefighter records always releasable on the public-interest prong?
A: Not categorically, but the AG repeatedly says firefighter conduct creates a strong public interest because of the public-safety dimension. Other factors (rank, public controversy, breach of public trust) also matter. The AG's view in this opinion and in 2021-0089 is that the firefighter context, plus policy violations, "could reflect a degree of misconduct sufficient to generate a compelling public interest."

Q: What if a different document like a confidential medical record is attached to the supporting documents?
A: A footnote in the opinion notes that one supporting document referenced a medical test and a doctor's note attached to it. Those attachments were not provided to the AG, and the AG presumed the custodian had withheld them under § 25-19-105(b)(2), the medical-records exemption. So bona fide medical records get withheld, even when they sit inside an otherwise releasable evaluation file.

Background and statutory framework

The Arkansas FOIA framework here mirrors the related opinions in this October-November 2021 set:

• Personnel records under § 25-19-105(b)(12): Young v. Rice balancing test.
• Employee evaluation or job performance records under § 25-19-105(c)(1): four-part test (level of discipline, finality, basis, compelling public interest).
• Medical records under § 25-19-105(b)(2): exempt.

Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines evaluation records broadly enough to include not just the formal disciplinary letter but the investigative records that document the misconduct giving rise to the discipline. Mixed-record problems (records that are partly evaluation and partly personnel) are handled record by record.

The custodian-opinion review under § 25-19-105(c)(3)(B)(i) is statutorily limited to the custodian's decision. Hypothetical or undecided redaction questions fall outside the AG's review authority.

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(2) (medical records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion review procedure)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2020-061 (disciplinary letters as evaluation records)
• Ops. Att'y Gen. 2009-020, 2008-065, 2005-175 (firefighter analogous to police on public interest)
• Op. Att'y Gen. 2017-063 (compelling interest from policy violations)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-094
November 17, 2021
Ms. Jessica Looper
Cabot City Attorney's Office
101 North Second Street
Cabot, AR 72023
Dear Ms. Looper:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian of the records, is
based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). This subdivision
authorizes the custodian, requester, or the subject of certain employee-related
records to seek an opinion from this office stating whether the custodian's decision
regarding the release of such records is consistent with the FOIA.

Your correspondence indicates that the City of Cabot ("City") has received a
request under the FOIA for records of a former employee. You have attached
several documents that you believe are responsive to the request and that you have
determined are subject to release under the FOIA. The subject of the records
objects to their release. You ask whether your decision to release the records is
consistent with the FOIA. Additionally, you ask whether the records' references
to certain medical information should be redacted.

RESPONSE

Having reviewed the records at issue, it is my opinion, based on the definitions
and standards discussed below, that the custodian has properly classified the
records as the former employee's evaluation records. The custodian has
determined that these evaluation records meet the applicable test for disclosure.
From the face of the records, I cannot say that this decision is inconsistent with the
FOIA.

As to your question about whether certain medical information should be redacted
from the records, it appears that you have not made an initial decision regarding
these potential redactions. Therefore, I cannot opine on whether your decision is
consistent with the FOIA. However, I can anticipate based on the face of the
records that any potential basis for redacting such information would fall outside
the scope of my statutory review.

DISCUSSION

I. General standards governing disclosure.

A document must be disclosed in response to a FOIA request if all three of the
following elements are met. First, the FOIA request must be directed to an entity
subject to the act. Second, the requested document must constitute a public
record. Third, no exceptions allow the document to be withheld.

The first two elements appear to be met. The request was made to the City of
Cabot, which is a public entity and is subject to the FOIA. Moreover, the request
appears to pertain to public records. Because the records are held by a public
entity, they are presumed to be public records, although that presumption is
rebuttable. Accordingly, given that I have no information to suggest that the
presumption can be rebutted, the analysis proceeds to the third element, that is,
whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files. For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records" or "employee
evaluation or job performance records." The test for whether these two types of
documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular
record, they must make two determinations. First, they must determine whether
the record meets the definition of either exception. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that record be disclosed.

In this case, the custodian has determined that the records at issue are employee-
evaluation records. In my opinion, this determination is consistent with the FOIA.
Accordingly, I will limit my discussion to the definitions and standards for records
of that type.

The FOIA itself does not define "employee evaluation or job performance
records." But the Arkansas Supreme Court has adopted this office's view that the
term refers to any records (1) created by or at the behest of the employer (2) to
evaluate the employee (3) that detail the employee's performance or lack of
performance on the job. This exception includes records generated while
investigating allegations of employee misconduct that detail incidents that gave
rise to an allegation of misconduct. This office has also long-opined that it
includes letters notifying employees of disciplinary action if the letters include the
reason(s) for the action.

Additionally, some employee-related records constitute "mixed records," i.e.,
records that constitute (1) more than one person's evaluation, (2) at least one
person's evaluation and at least one other person's personnel record, or (3) more
than one person's personnel record.

If a document meets the above definition, the document cannot be released unless
all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).

As for the final prong, the FOIA never defines the key phrase "compelling public
interest." But the leading commentators on the FOIA, referring to this office's
opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in
determining whether a compelling public interest is present: (1) the
nature of the infraction that led to suspension or termination, with
particular concern as to whether violations of the public trust or
gross incompetence are involved; (2) the existence of a public
controversy related to the agency and its employees; and (3) the
employee's position within the agency. In short, a general interest in
the performance of public employees should not be considered
compelling, because that concern, at least theoretically, always
exists. However, a link between a given public controversy, an
agency associated with the controversy in a specific way, and an
employee within the agency who commits a serious breach of public
trust should be sufficient to satisfy the "compelling public interest"
requirement.

These commentators also note that "the status of the employee" or "his rank
within the bureaucratic hierarchy" may be relevant in determining whether a
"compelling public interest" exists, which is always a question of fact that must
be determined, in the first instance, by the custodian after he considers all the
relevant information.

The primary purpose of this exception is to preserve the confidentiality of the
formal job-evaluation process in order to promote honest exchanges in the
employee/employer relationship.

III. Application.

The records at issue in this case include a letter of suspension and a notice of
termination, as well as supporting documentation detailing the conversations and
events leading up to the former employee's termination. This office has opined
that letters notifying employees of disciplinary action constitute employee-
evaluation records if they contain the reasons for the action. These letters
contain such reasons for the disciplinary actions taken; thus, they are properly
classified as employee-evaluation records. With respect to the supporting
documentation, these records appear to have been generated as a result of an
investigation into the former employee's alleged misconduct. Accordingly, they
are also properly classified as employee-evaluation records. Consequently, the
disclosure of the records at issue must be evaluated under the above four-part test.

In this instance, it seems clear that the first three elements are met. As for the
fourth, the "compelling interest" element, various factors bear on the analysis,
including the employee's rank in the hierarchy and the existence of a public
controversy. But the very fact that the employee at issue is a firefighter creates a
relatively strong public interest in his conduct. This office has previously
observed that firefighters constitute a category of public servant very similar to
policemen in terms of their direct importance to the general public. I believe
consideration must be given to the potential public impact of the misconduct at
issue, regardless of the employee's rank within the fire department.

Additionally, the absence of public controversy in some circumstances establishes
little with respect to whether a compelling public interest exists. It is far more
pertinent to the analysis that disciplinary action resulted from a violation of
policies and rules aimed at conduct that could undermine the public trust,
compromise public safety, or both. This office has consistently opined that the
violation of such a rule in itself gives rise to a compelling public interest in
disclosure of employee-evaluation records.

In this case, the former employee's termination was the culmination of a number
of infractions, some of which could be described as jeopardizing public safety.
Thus, while the existence of a compelling public interest in the release of a
particular record is always a question of fact that must be determined in light of all
the surrounding circumstances, I believe the policy violations detailed in the
records at issue could reflect a degree of misconduct sufficient to generate a
compelling public interest in disclosure. Accordingly, I cannot say the custodian's
decision to release the records at issue is inconsistent with the FOIA.

Finally, you ask whether the records' references to certain medical information
should be redacted. I understand this question to be asking about references to
medical information in the employee-evaluation records themselves and not to the
two attachments mentioned by one of the supporting documents. It appears that
you have not made an initial decision regarding whether to redact these references
from the records. Therefore, I am unable to opine on whether your decision is
consistent with the FOIA. However, I can anticipate based on the face of the
records that any potential basis for redacting such information would fall outside
the scope of my statutory review.

Sincerely,
LESLIE RUTLEDGE
Attorney General

[Footnote:
22 One of the supporting documents states that a medical test and a doctor's note are attached. You have not provided copies of these documents, and I presume the custodian has determined that these documents are medical records that should be withheld from release, pursuant to section 25-19-105(b)(2).]